From Casetext: Smarter Legal Research

People v. Williams

APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT THIRD DIVISION
Apr 17, 2013
2013 Ill. App. 111399 (Ill. App. Ct. 2013)

Opinion

No. 1-11-1399

04-17-2013

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEREMY WILLIAMS, Defendant-Appellant.


NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the

Circuit Court of

Cook County.


No. 10 CR 9745


Honorable

James B. Linn,

Judge Presiding.

JUSTICE delivered the judgment of the court.

Presiding Justice Neville and Justice Pierce concurred in the judgment.

ORDER

¶ 1 Held: Where the defense emphasized robbery victim's identification of another person as his attacker, victim's identification of defendant in preliminary hearing was admissible to rebut charge of recent fabrication; robbery conviction was affirmed. ¶ 2 Following a bench trial, defendant Jeremy Williams was convicted of robbery and two counts of aggravated battery. After finding defendant was subject to mandatory Class X sentencing due to his prior felony convictions, the trial court imposed a sentence of two concurrent five-year terms for aggravated battery and an additional concurrent extended term of 90 months for robbery. On appeal, defendant contends the trial court erred in allowing the State to introduce the victim's identification of him as the offender in a preliminary hearing as a prior consistent statement admissible to rebut a charge of recent fabrication. Defendant also contends that one of his two aggravated battery convictions should be vacated under the one-act, one-crime rule because both convictions were based on the same physical act. We affirm in part and vacate in part. ¶ 3 At trial, Mario Cortes testified that at about 9:30 p.m. on April 27, 2010, defendant stole his cell phone and other property on a CTA train. Cortes stated he was riding the train alone when defendant and several other people approached him. Defendant asked if he could borrow Cortes's cell phone to make a call, and Cortes declined to give him the phone and put it in his pocket. ¶ 4 Cortes testified defendant removed the phone from his pants pocket and took $5 and a bus card from another pocket. Defendant struck Cortes in the face three times and got off the train. The police contacted Cortes and he identified defendant in a lineup the next day. ¶ 5 On cross-examination, defendant's counsel asked Cortes if he was stating "today" that defendant, whom he had identified in court, was the person who attacked him and took his property. Cortes responded yes. When Cortes said he had identified defendant on the day of the crime, defense counsel asked if he spoke to an Officer Rodriguez, and Cortes said he did. Cortes was asked if he told Officer Rodriguez that a person named Javelle Holmes sat next to him on the train. Cortes denied making that statement or implicating someone other than defendant, though he acknowledged that a group of people had approached him. ¶ 6 Defense counsel again asked Cortes about the "person who took your things [-] the person who you are saying today was Mr. Williams [-]" and asked how long the interaction lasted. ¶ 7 On redirect examination, the prosecutor asked Cortes if he knew a person named Javelle Holmes; Cortes said he did not and that defendant was his assailant. Cortes was asked about his testimony at a May 20, 2010, preliminary hearing, and the following colloquy occurred:

"MS. KEENAN [assistant public defender]: Judge, I am going to object to prior consistent statements. It bolsters the witness.
THE COURT: Overruled. Go ahead."
¶ 8 The State asked Cortes if he testified at the preliminary hearing that defendant asked for his cell phone and removed the item from his clothing. When the court asked, "Why am I hearing that[?]", the prosecutor responded, "Because she is suggesting that the first time that [Cortes] testified that the defendant both took his property and hit him was today." The court allowed the State to continue, and Cortes said he testified at the preliminary hearing that defendant was his attacker. ¶ 9 On recross, Cortes said he pointed out the offender to police shortly after the crime but denied that he pointed because he did not know the suspect's name. Cortes said he identified defendant. ¶ 10 Before Cortes testified, the State presented the testimony of Jose Maldonado who stated that he was approached by defendant and a group of people at about the same time Cortes was assaulted. Defendant asked to use Maldonado's cell phone, and Maldonado handed it to defendant, after which defendant got off the train with it. Maldonado followed defendant off the train and asked for his phone back, and defendant struck him in the head while they were on the train platform. On cross-examination, the public defender asked Maldonado if he told an officer that "Jarron Holmes" struck him, and Maldonado said he did not, reiterating that defendant was his attacker. ¶ 11 Chicago police officer Harold Rodriguez testified that on the night in question, he responded to a call of a man being attacked at the Pulaski pink line train station. He and several other officers were directed by a police helicopter flying overhead to a group of men on a nearby street. Rodriguez testified he performed a pat-down search of defendant and retrieved a bus card, $5 in cash and "a couple of cell phones." Rodriguez traced one of the phones to Cortes. ¶ 12 The day after the incident, Rodriguez interviewed Cortes, who said Javelle Holmes stole his phone. The officer testified that Holmes and several others were arrested for the incident involving Cortes, and defendant was charged. ¶ 13 Chicago police detective Luis Carrizal testified that he conducted a lineup the day after the offense in which Cortez identified defendant as his assailant. When asked on cross-examination if Cortes had told Officer Rodriguez that "Javeel Holmes" had attacked him, Carrizal responded, "[T]here was something like that documented in the case report, yes." ¶ 14 In closing argument, defense counsel argued that Cortes told the responding officers "Javeel Holmes sat next to him on the train, and that Javeel Holmes struck him two times on the left side of the face" but identified defendant in court as his assailant. Defense counsel argued Officer Rodriguez's testimony impeached Cortes because the officer was told that Holmes, not defendant, committed the crime. The prosecution interjected that Cortes had consistently identified defendant as the person who took his property, though he told Officer Rodriguez that Holmes struck him. ¶ 15 The following exchange then took place:
"MS. KEENAN [assistant public defender]: Judge, I'm just going to renew my objection to the preliminary hearing transcript. I objected at the time that it was improper, and I'm just going to renew that.
THE COURT: Well, it was offered because, at the time, the [p]rosecutor said that you were suggesting its [the] first time he ever said the things he was saying in court, and she was trying to show that because there was an allegation of a recent fabrication that there was, indeed, these prior inconsistent statement [sic]."
¶ 16 After the prosecutor resumed and concluded his argument, the court found defendant guilty, noting that Cortes's cell phone was found in defendant's possession. At sentencing, the State informed the court that defendant was subject to mandatory Class X sentencing based on his prior felony convictions in 2004, 2005 and 2006. ¶ 17 On appeal, defendant first contends the trial court erred in permitting the State to introduce Cortes's testimony at the preliminary hearing identifying defendant as the offender. Defendant argues that although the court deemed the evidence admissible to rebut the defense's charge of the recent fabrication of Cortes's account, the defense had raised no charge of fabrication or a motive for Cortes to lie. ¶ 18 The general rule is that prior consistent statements of a witness are inadmissible for the purpose of corroborating trial testimony or rehabilitating a witness. People v. Cuadrado, 214 Ill. 2d 79, 90 (2005). Such evidence is inadmissible because it unfairly enhances the credibility of the witness based simply on the repetition of an account. People v. Donegan, 2012 IL App (1st) 102325, ¶ 52, citing People v. Smith, 139 Ill. App. 3d 21, 33 (1985) (the "danger"in such statements is that "repetition lends credibility to testimony that it might not otherwise deserve"). ¶ 19 However, prior consistent statements are admissible in two circumstances: (1) where there is a charge that the witness has a motive to testify falsely; or (2) where there is a charge that the witness has recently fabricated the testimony. People v. Heard, 187 Ill. 2d 36, 70 (1999). Under the first exception, the prior consistent statement is admissible if it was made before the motive to testify falsely came into existence. Id. Under the second exception, a prior consistent statement is admissible if it was made prior to the alleged fabrication, because it shows that the witness told the same story before the time of the alleged fabrication. Donegan, 2012 IL App (1st) 102325, ¶ 52. Absent an abuse of discretion, this court will not reverse a trial court's evidentiary ruling on a prior consistent statement. Id. ¶ 20 In the case at bar, the trial court ruled Cortes's preliminary hearing testimony was admissible to rebut the defense's allegation that his testimony was recently fabricated. The record supports that analysis because defense counsel asked Cortes twice if he was stating "today" that defendant was his assailant. Because Cortes's prior consistent statement identifying defendant as his attacker was made before his testimony at defendant's trial, i.e., his in-court testimony of alleged recent fabrication, the prior statement met the test for admissibility under the second exception set out above. Donegan, 2012 IL App (1st) 102325, ¶ 52. ¶ 21 Defendant contends, though, that Cortes's preliminary hearing testimony did not occur before his statement that a person named Holmes had attacked him was memorialized in a police report. The State responds that under the "recent fabrication" exception, the prior consistent statement need only precede the alleged recent fabrication. Here, the defense asserted that Cortes's account at trial differed from his statement to the responding officers that Holmes was his assailant. The content of Cortes's testimony at the preliminary hearing was admissible to rebut the general inference of recent fabrication of statements he made at trial that were inconsistent with statements recorded in the police report because the prior consistent statements preceded the alleged recent fabrication. See Mullen, 313 Ill. App. 3d at 732-33. The trial court did not abuse its discretion in allowing that evidence. ¶ 22 Defendant's remaining contention on appeal is that one of his two aggravated battery convictions should be vacated because both of those counts were based on the same physical act and therefore violate the one-act, one-crime rule. Under Count 2 of the information, defendant was charged with intentionally or knowingly causing bodily harm by striking Cortes in the head while Cortes was a passenger on public transportation. Under Count 3, defendant was charged with intentionally or knowingly making contact of an insulting or provoking nature with Cortes by striking him in the head while Cortes was a passenger on public transportation. Both counts against defendant were brought under section 12-4(b)(9) of the Illinois Criminal Code of 1961 (720 ILCS 5/12-4(b)(9) (West 2010)). ¶ 23 The State responds that defendant has forfeited this claim by failing to raise it in the trial court; however, the State concedes this error is reviewable under the plain error doctrine and concedes that defendant can be convicted only of the more serious of the above-described offenses. Our supreme court has noted that where one offense does not appear more serious than another and the punishments are identical, the case should be remanded to the trial court to determine the less serious offense and order that conviction to be vacated. In re Samantha V., 234 Ill. 2d 359, 379 (2009); see also People v. Millsap, 2012 IL App (4th) 110668, ¶¶ 18-20. Here, however, that step seems wasteful because both aggravated battery counts are Class 3 felonies involving the same mental state and identical punishments; indeed, the counts were brought under the same statute for apparently the same conduct. Moreover, our vacating of one aggravated battery conviction does not affect defendant's sentence, in that those terms were to be served concurrently with each other, and concurrent with his robbery sentence. Because the offenses are virtually identical and defendant's sentence will not be affected by vacating one of the aggravated battery convictions, we conclude that a remand for resentencing is unnecessary. ¶ 24 Accordingly, we vacate defendant's conviction on count 3 and order that the mittimus be so corrected. See People v. Stroud, 392 Ill. App. 3d 776, 808-09 (2009); People v. Harper, 387 Ill. App. 3d 240, 244 (2008) (appellate court has authority to correct the mittimus at any time without remanding the matter to the trial court). The judgment of the trial court is affirmed in all other respects. ¶ 25 Affirmed in part, vacated in part with directions.

Javelle is referred to both as "Javeel" and "Jevelle" in the record.


Summaries of

People v. Williams

APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT THIRD DIVISION
Apr 17, 2013
2013 Ill. App. 111399 (Ill. App. Ct. 2013)
Case details for

People v. Williams

Case Details

Full title:THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEREMY…

Court:APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT THIRD DIVISION

Date published: Apr 17, 2013

Citations

2013 Ill. App. 111399 (Ill. App. Ct. 2013)

Citing Cases

People v. Williams

At sentencing, the State informed the court that defendant was subject to mandatory Class X sentencing based…